Federal judge considering proposed changes to consent decree for Memphis police

Federal judge considers making changes to decades-old consent decree

MEMPHIS, Tenn. (WMC) - As the nation wrestles with police reform, a federal judge is considering whether to make changes to a decades-old court order, known as a consent decree, that bans Memphis police from spying on activists.

U.S. District Court Judge Jon P. McCalla heard closing arguments on Monday on proposed changes to the 1978 Kendrick Consent Decree.

City of Memphis attorneys say the consent decree is so outdated that Memphis police officers can't do their jobs effectively, and they say without changes, public safety will be harmed.

In 2018, McCalla ruled the Memphis Police Department violated the decree by using a fake Facebook account to spy on activists and put together a list of activists that would require police escorts to enter city hall.

The city's former chief legal officer, Bruce McMullen, told WMC Action News 5 last fall the consent decree makes MPD's job a lot harder.

“That has been an ongoing struggle with us trying to use 2019 technology and crime-fighting best practices to fit it within a 1978 consent decree,” McMullen said. “There are incidents where we have struggled and felt it impractical for us to do proper law enforcement.”

The American Civil Liberties Union of Tennessee, which filed the lawsuit that led to the 2018 ruling, and the City of Memphis have agreed to change several parts of the consent decree.

For instance, they have agreed to change the phrase “political intelligence” to “First Amendment-related intelligence” to make the document less confusing.

“The consent decree we think should be a document that stands on its own,” McMullen said. “Someone should be able to read it and it clearly states what it states and is clear to most people, whether they have a law degree or not.”

The two sides also agreed to add language about social media and how MPD may still be able to use it, if they are not spying.

But a big disagreement remains over whether MPD can share information about possible threats with other law enforcement agencies.

Section I of the consent decree says:

“The defendant and the City of Memphis shall not encourage, cooperate with, delegate, employ or contract with, or act at the behest of, any local, state, federal or private agency, or any person, to plan or conduct any investigation, activity or conduct prohibited by this Decree.”

City attorneys say there are too many gray areas and the decree could become "detrimental to public safety" if this section is not changed.

“What the City of Memphis struggled with were the gray-area threats, threats that do not rise to the level of being a crime,” said McMullen.

McMullen used the example of schools notifying MPD of a threat on social media.

“Even if you found the person who made the threat, you have no criminal charge against them for saying something like that,” said McMullen.

He also said the decree made it more difficult to deal with other threats that surfaced online, like those surrounding protests.

“We struggled with monitoring the internet in order to be prepared and ready when there are protests groups and counter-protest groups,” McMullen said.

The ACLU counters that MPD can cooperate with other law enforcement agencies regarding crimes but cannot go further.

“(MPD) can’t ask another party or direct another party to do what they cannot do under the decree. They also can’t cooperate with someone they know is taking steps that would violate the decree,” said Thomas Castelli, an attorney for the ACLU of Memphis. “We think that that is essential to the integrity of the entire decree.”

The ACLU wants the judge to keep the original language in Section I.

It's now up to McCalla to decide whether to accept any or all of the proposed changes that the two sides have agreed to. He will also decide whether Section I should be changed as MPD is requesting.

The independent court monitor, Edward L. Stanton III, who was appointed to make sure MPD doesn’t violate the decree, has remained neutral but says he does support the court accepting the changes that both sides have agreed on.

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